927 F.2d 1239 (D.C. Cir. 1991), 89-5446, Powell v. U.S. Bureau of Prisons

Docket Nº:89-5446.
Citation:927 F.2d 1239
Party Name:Thomas D. POWELL, Appellant, v. UNITED STATES BUREAU OF PRISONS, Appellee.
Case Date:March 15, 1991
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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927 F.2d 1239 (D.C. Cir. 1991)

Thomas D. POWELL, Appellant,



No. 89-5446.

United States Court of Appeals, District of Columbia Circuit.

March 15, 1991

Argued Feb. 1, 1991.

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Appeal from the United States District Court for the District of Columbia (Civil Action No. 88-03082).

Thomas D. Powell, pro se.

William H. Penniman, Washington, D.C. (appointed by the Court), for amicus curiae on behalf of appellant urging that there be a fully informed decision.

Michael L. Martinez, Asst. U.S. Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Before WALD, BUCKLEY and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge SENTELLE.

WALD, Circuit Judge:

Thomas Powell appeals from a district court decision granting the Bureau of Prisons' motion for summary judgment and adopting a magistrate's recommendation that Powell's Freedom of Information Act request for disclosure of the "Central Inmate Monitoring Manual" be denied. Events subsequent to the district court's decision cast doubt on that court's finding concerning the "segregability" of the requested document. Accordingly, we remand this matter to the district court for further consideration in light of these new developments.


    The Bureau of Prisons ("Bureau") maintains a "Central Inmate Monitoring" ("CIM") program which establishes special procedures designed, in the words of a Bureau official, "to monitor and control the transfer, temporary release and community-based activities of certain inmates who present special concerns for management." These inmates include persons who due to "their prior record, previous community occupation,,

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    known behavior or offense characteristics" are "vulnerable to confrontation, assault or retaliation." In late 1988, Powell, then an inmate in the CIM program, submitted to the Bureau a request pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552 ("FOIA"), seeking disclosure of, inter alia, the Central Inmate Monitoring Manual. According to a declaration by a Bureau official (the "Katsel Declaration"), the Manual contains "[d]etailed instructions for the implementation of the Central Inmate Monitoring System." In response, the Bureau released only a public "program statement" and claimed that the Manual itself was, in its entirety, exempt from disclosure under 5 U.S.C. Sec. 552(b)(2)--the so-called FOIA "Exemption 2"--which exempts from disclosure documents "related solely to the internal personnel rules and practices of an agency."

    Powell subsequently filed suit pro se and in forma pauperis in the District Court for the District of Columbia, seeking review of the Bureau's decision. The matter was referred to a federal magistrate, who reviewed the Bureau's motion for summary judgment and filed a report and recommendation. Based on the Katsel Declaration, which addressed the function of the CIM program and the contents of the Manual, the magistrate concluded that the material was exempt under Exemption 2. More precisely, she found that the Manual passed the 2-prong test set forth in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981) (en banc ), which asks (1) whether the document is "predominantly internal" and (2) whether disclosure would significantly risk circumvention of the law or agency regulations.

    Powell then filed an objection to the magistrate's report, stating only that he "objects to the entire Report and Recomendation [sic] of the Magistrate and requests the District Judge to conduct a de novo review of the proceedings." The district court noted that Powell's objection had not complied with Local Rule 504(b), which requires that "objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made," and accordingly reviewed the magistrate's report only for clear error. Finding no such error, the district court issued an order adopting the Magistrate's recommendation.

    Powell appealed, and this court subsequently appointed an amicus curiae to prepare briefs and to argue in support of Powell. 1 Amicus brought to this court's attention the fact that the Bureau, in the context of another FOIA action, had in fact already released portions of the Manual. See Oliva v. Bureau of Prisons, No. 84 Civ. 5741 (JFK) (S.D.N.Y.1986), 1986 WL 2959. Upon notification of this fact, the Bureau disclosed most of these same portions of the Manual to Powell, the amicus, and this court. 2


    Powell first argues that the district court erred in employing a clear-error standard to review the magistrate's report and contends that the court should have reviewed that report de novo. The district court used a clear-error standard because it found that Powell had failed to comply with Local Rule 504(b), 3 which requires that objections to magistrates' reports be specifically stated. Although he acknowledges that, in most cases, Powell's generic

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    objections would fail to satisfy the local rule, the amicus contends that, under the particular circumstances of the case before us, the district court's restrictive standard of review was in error.

    The amicus emphasizes three conditions militating in favor of a de novo standard of review by the district court. First, he notes that the magistrate's report was brief (five pages) and focused on a single issue--the wholly exempt status of one 119-page document. Given the narrow focus of the report, he contends, the use of a general objection in no way undermines the purpose of the local rule in focusing the district court's attention on the core of the dispute. Moreover, the amicus reminds us, the pleadings of a pro se petitioner (here a prisoner at the time) are to be read with generosity. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Finally, the amicus maintains that Powell (like most FOIA requesters) operated at a disadvantage in filing his objection: he knew only what the affidavit said about the actual contents of the document and thus was in no position to offer anything more than the most general objections to the magistrate's report.

    Powell's excuse has some appeal, but we need not decide at this time the merits of this claim (or even Powell's ultimate challenge to the magistrate's application of the Crooker test). Instead, because the release of portions of the Manual after the docketing of this appeal has called into serious question the adequacy of the magistrate's findings (as adopted by the district court) about the segregability of the Manual, we remand this case to the district court for further findings on that issue.

    The FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. Sec. 552(b) (emphasis supplied). Accordingly, this court has long recognized that agencies and courts are obliged to determine whether nonexempt material can reasonably be segregated from exempt material. See, e.g., Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242, 259-62 (D.C.Cir.1977). In this case, the magistrate never made an express finding as to segregability but rather simply noted with approval that the "[d]efendant avers that meaningful segregation of the material in the Manual is not feasible." We have some doubt whether that statement satisfies the lower court's duty under the FOIA. 4 But in any case, we find that the issue of segregability must be reconsidered because the defendant's averment itself (on which the magistrate relied) has been shown to be infirm, and thus cannot provide a sufficient basis for a finding of nonsegregability. 5

    The Katsel declaration is infirm in at least two ways. First, although in this action the Bureau contends that the entire Manual is exempt from FOIA disclosure, the Bureau has, in earlier litigation, "conceded that Chapter 2 [of the Manual] does not qualify for exemption from disclosure." Oliva, 1986 WL at 2959. Moreover, as the subsequent release of substantial portions of the Manual demonstrates, some segregation of the Manual is "feasible"--contrary to the Bureau's blanket statement that it was not. 6 In the light of this new evidence,

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    the district court's segregability analysis must be revisited and we remand this matter to the district court for reconsideration. 7

    We recognize, of course, that this court is not required to consider evidence not contained in the record. See Goland v. Central Intelligence Agency, 607 F.2d 339, 370-71 (D.C.Cir.1978) (reh'g), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). However, in this case, several unusual circumstances militate in favor of such consideration and ultimately in favor of a remand. First, the Oliva decision, citation of which prompted the Bureau to release portions of the Manual in this case, was only available through a computerized research service. This fact is particularly significant because the appellant was, until recently, a federal prisoner and a pro se litigant with limited access to legal materials. Second, although in many cases a party uncovering new evidence may seek relief in the district court pursuant to Fed.R.Civ.P. 60(b), 8 such relief...

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